How should foreign rights holders/beneficiaries be treated? − Rakyat Biologi

International Publishers Association (IPA)

All beneficiaries should be treated equally.

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China

We hold that the principles of national treatment and reciprocity should be applied.

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Kyrgyzstan

It is presumed that rights of foreign holders of traditional cultural expressions (folklore) would be provided pursuant to legislation of respective country.

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United States of America

For the reasons set forth in our response to Issue five, the United States believes that it is premature for the IGC to undertake a focused discussion of the treatment of foreign rights holders/beneficiaries. However, the United States notes that one of the guiding principles extensively discussed within the IGC is respect for relevant international agreements. The United States understands this principle to include the fundamental principle of national treatment, or nondiscrimination with respect to foreign rights holders. In the view of the United States, this bedrock principle of international intellectual property rights should continue to inform the spirit of discussions within the IGC.

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Ghana

Nothing in this convention may be interpreted as altering the status or diminishing the level of protection under any convention affecting the rights and obligations of states parties deriving from international instruments relating to intellectual property rights or to the use of biological and ecological resources to which they are parties. Foreign right holders / beneficiaries should be given equal treatment.

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Brazil

Foreigners should be afforded the same treatment as nationals or treatment not less favorable. The draft provision of Article 11 in the Annex to document WIPO/GRTKF/IC/10/4, transcribed below, represents adequate basis to discuss the issue:

“The rights and benefits arising from the protection of traditional cultural expressions/expressions of folklore under national measures or laws that give effect to these international provisions should be available to all eligible beneficiaries who are nationals or habitual residents of a prescribed country as defined by international obligations or undertakings. Eligible foreign beneficiaries should enjoy the same rights and benefits as enjoyed by beneficiaries who are nationals of the country of protection, as well as the rights and benefits specifically granted by these international provisions.”

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Japan

As mentioned in the above item 3, any justifiable reasons why IP right protection should be extended to folklore have not been clearly identified and sufficiently explained. Japan has a serious concern about establishing a new type of intellectual property right or a sui-generis right for protection of TCEs/EoF, as well as about creating a legally binding international instrument that obligates member States to establish such a regime. Treatment of foreign rights holders and beneficiaries would depend on the type of protection TCEs/EoF would be granted and the corresponding international regulations.

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Norway

With regard to the custodian’s economic and moral rights, as provided for in accordance with the proposed recommendation set out in document WIPO/GRTKF/IC/9/12 paragraph 38 national treatment and MFN should be granted, with the possibility for reciprocity provisions.

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Qatar

The same treatment of native beneficiaries.

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South Africa

At the international level there is significant level of support for opposing the granting of patents on non-original inventions. For example, more than a dozen organizations from around the world got together to oppose the EPO Neem patent and the entire process took five years. However, South Africa takes note that the current process of opposition is, however, extremely expensive and time consuming. A recent suggestion by the USPTO provides a rational approach to solve these problems.

International instrumentations should take into consideration past abuse as well as the vulnerability of the communities and should seek to elevate the rights of communities over the rights of multinational consortiums.

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Russian Association of Indigenous Peoples of the North (RAIPON)

No response.

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Colombia

We support what is stated on this subject in the proposed Article 11 of the substantive provisions contained in documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4.

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Federación Ibero-Latinoamericana de Artistas, Intérpretes y Ejecutantes (FILAIE)

In exactly the same way as nationals, with the establishment of appropriate systems of reciprocity. In other words, the principle of national treatment should apply.

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Tunisia

The right of ownership of traditional knowledge is linked to the community and the nation, and territoriality is therefore an important element.

Foreign nationals cannot be owners or beneficiaries of rights.

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Guatemala

Law for the Protection of the National Cultural Heritage, Decree No. 26-97, revised by Decree No. 81-98.

Article 65. Conclusion of agreements. The Government of Guatemala shall conclude with the foreign governments it deems appropriate bilateral and regional agreements in order to avoid the unlawful trafficking of the cultural property of the contracting countries.

Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, WIPO/GRTKF/IC/2.

Protection of expressions of foreign folklore. The expressions of folklore developed and perpetuated in a foreign country shall be protected:

(h) subject to the reservation of reciprocity, or

(i) on the basis of treaties and other agreements.

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Russian Federation

Taking into consideration the provisions of points 3 and 4, foreign rightholders/beneficiaries should be accorded similar treatment as own national, i.e. national treatment.